Smt. Bina Devi v. State Of U.P And Another

Hon. Virendra Singh, J.

Smt. Bina Devi, the revisionist, has preferred this revision against the judgement and order dated 06.12.2000 passed by the 9th Additional Sessions Judge, Aligarh in Criminal Revision No. 454 of 1999 (Ram Kumar Pathak v. State of U.P and Others), thereby amending the order dated 18.08.1999 passed by the learned Magistrate for payment of maintenance w.e.f 27.06.1995 is ordered to be paid w.e.f 18.08.1999, while the Criminal Misc. Application aforesaid has been moved under Section 482 CrPC by Ram Kumar Pathak with the prayer against Bina Devi that the impugned order dated 18.08.1999 pertaining to award of maintenance passed by learned Magistrate as well as order dated 06.12.2000 passed by learned Sessions Judge thereby enforcing the maintenance even from 18.08.1999 are liable to be quashed.

At the time of hearing of both the aforesaid Revision and the Criminal Misc. Application, no one appeared on behalf of Bina Devi, while learned counsel for Ram Kumar Pathak as well as learned AGA on behalf of State of U.P are present. The grievance of the revisionist Bina Devi in this revision remained that the impugned order dated 06.12.2000 passed by the learned Sessions Judge is illegal because of overlooking the provisions in this regard contained in the Code of Criminal Procedure whereby Section 125 CrPC provides that maintenance is to be paid from the date of the application if deemed fit and appropriate.

Learned counsel for Ram Kumar Pathak submitted that not only the impugned order dated 06.12.2000 passed by learned Sessions Judge is erroneous, even providing the maintenance to be paid from the date of order, i.e 18.08.1999 rather the order of learned Magistrate dated 18.08.1999 is also illegal in the eyes of law because the applicant for maintenance Bina Devi had left her five year old son with him despite the fact that he was unemployed and Bina Devi was knowing knitting and sewing. The learned Magistrate wrongly awarded the maintenance of Rs. 500/- per month in favour of Bina Devi against Ram Kumar Pathak. The Revisional Court not only wrongly upheld the award of the maintenance, rather enforced it even from 18.08.1999 erroneously.

In the light of the contentions on behalf of Ram Kumar Pathak and in the light of the grounds taken by Bina Devi in the revision, I have gone through the entire facts and circumstances on record. So far as the question of Criminal Misc. Application No. 8537 of 2002 is concerned, I am of this view that the application under Section 482 CrPC is not maintainable against the impugned order. Ram Kumar Pathak, against whom the maintenance was awarded by the learned Magistrate had already moved a revision before the learned Sessions Judge which is partly allowed in favour of Ram Kumar Pathak for payment of maintenance w.e.f 18.08.1999 in place of its payment from 27.06.1995 passed by the learned Magistrate.

Section 482 CrPC provides regarding inherent powers of the High Court that nothing in this Code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. Here in this case before me, since Ram Kumar Pathak has already taken recourse of the provisions of revision against the order passed by the learned Magistrate before the learned Sessions Judge, therefore, it cannot be said that the proceedings in revision were abuse of process of court.

So far as judicial propriety of the order passed by the learned Sessions Judge is concerned, Section 482 CrPC is not the forum to invoke the powers of this court for quashing the order passed on merit by the learned Sessions Judge invoking jurisdiction vested in the court. Therefore, the aforesaid application under Section 482 CrPC moved by Ram Kumar Pathak deserves to be rejected and is hereby rejected accordingly. So far as the question of grounds of revision are concerned, that the learned Sessions Judge committed error thereby passing the order for maintenance from the date of application, I am of this view that the learned Sessions Judge committed no error in the eyes of law. Section 125 CrPC is very much relevant in this regard. Sub Clause 2 provides that maintenance allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. There is catena of judgements in this regard passed by various High Courts and Hon'ble Supreme Court stating that no doubt maintenance can be made payable from the date of application, but the court is required to record reasons when it awards maintenance from the date of application, otherwise, even if the order is silent as to date, it will be effective from the date of order for which it is not necessary to record reasons. If the Magistrate should award maintenance from the date of application and not from the date of the order, the Magistrate has to give the reasons for it. Section 125 Sub Clause 2 of CrPC is prima facie very much clear in this regard providing that such an allowance shall be payable from the date of the order. The words “or, if so ordered” itself provides if the maintenance is to be provided from the date of the application, it has to be ordered, i.e the reasons have to be recorded.

In the light of the aforesaid law, the perusal of impugned order shows that the learned Sessions Judge has rightly held that in the order passed by the learned Magistrate, there is no mention as to on what basis the maintenance was being awarded from the date of application.

Therefore, I do not find any ground to intervene in the impugned order passed by the learned Sessions Judge, as there is no mention in the order of learned Magistrate that under which circumstances, the order of maintenance shall be enforceable from the date of application of the maintenance. The Revision too in the aforesaid circumstances deserves to be dismissed and is hereby dismissed accordingly.

Let a copy of this order be placed on the record of both the cases.

Dt. 05.02.2010

Jaideep/-